Aadhaar hearing

On Day 17 of the Aadhaar hearing, senior counsel KV Viswanathan continued his submissions on behalf of the petitioners in context of Section 59 of the Aadhaar Act of 2016, which lays down that all actions taken or anything done prior to the coming into force of the Act shall be deemed to have been validly taken or done under the said Act. He cited the 1996 judgment of the Supreme Court in Delhi Cloth & General Mills v. State of Rajasthan, wherein it was observed that a validating law must remove the cause of invalidation of the previous Acts and that a validating Act cannot be valid and effective if it merely deems a legal consequence without amending the law from which the said legal consequence could follow. Further, he stated even if it is assumed that Section 59 was validly enacted, on the grounds that there was no informed consent or procedural safeguards in respect of enrolments done prior to 2016, the said Section would be violative of the right to privacy under Articles 14 … [Read more...] about Aadhaar Hearing [Day 17] Subjecting Human Beings To Biometric Authentication Not Different From Experiments In Guinea Pigs: KV Viswanathan To SC

On Day 16 of the Aadhaar hearing, senior counsel P Chidambaram, appearing on behalf of Congress leader Jairam Ramesh, one of the petitioners, resumed his argument that Article 110(3), in so far as it provides that the decision of the Speaker of the Lok Sabha as to whether a Bill is a ‘Money Bill’ shall be final, does not exclude the scope of judicial review. Several judgments in context of the said contention were discussed: Sub Committee on Judicial Accountability v. UOI (1991), whereunder it was held, “It is not correct to say that the question whether a motion has lapsed or not was a matter pertaining to the conduct of the business of the House, of which the House was the sole and exclusive master, and that no aspect of the matter was justiciable before a Court…On an interpretation of the Constitutional provisions as well as the Judges (Inquiry) Act, 1968, the Courts retain jurisdiction to declare that a motion for … [Read more...] about Aadhaar Hearing [Day 16]: Decision Of Speaker On Money Bill Not Outside The Scope Of Judicial Review, Argues P Chidambaram [Read Written Submissions Of KVV]

Datar expressed the need for review of the judgment in Binoy Viswam (upholding the mandatory linkage of Aadhaar with PAN card in view of Section 139AA of the IT Act, 1961). On Day 15 of the Aadhaar hearing, senior counsel Arvind Datar, appearing on behalf of the petitioners, has advanced that the introduction of the Aadhaar (Targeted Deliveries of Financial and Other Subsidies, Benefits and Services) Act of 2016 as a Money Bill was unconstitutional and that it could have, at the most, been treated as a Finance Bill which required the approval of the Rajya Sabha. Referring to Article 110(3) in so far as it provides that the decision of the Speaker of the Lok Sabha as to whether a Bill is a ‘Money Bill’ shall be final, he submitted that the said provision does not exclude the scope of judicial review. On Day 1 of the Aadhaar hearing, senior counsel P Chidambaram had referred the bench to the 2007 judgment in Raja Ram Pal v. Hon’ble Speaker, Lok Sabha, wherein it was … [Read more...] about Aadhaar Hearing [Day 15] Introduction Of Aadhaar Bill As Money Bill Unconstitutional: Datar, Chidambaram

On Tuesday – Day 14 of the Aadhaar hearing, senior counsel Arvind Datar, making submissions on behalf of the petitioners, drew the attention of the bench to Rule 9 of the PMLA (Prevention of Money Laundering Act, 2002) Rules, as they stand after the 2017 amendment, requiring the linkage of existing bank accounts with the Aadhaar number and mandating the procurement of the number for opening new bank accounts. “The PMLA Rule violates the spirit of Article 14 in entirety in so far it arbitrarily metes out unequal treatment based on unreasonable classification. While the Aadhaar scheme is envisaged as being free and voluntary, in view of the Enrolment form appended to the Aadhaar Act and the interim orders of the apex court limiting the requirement of Aadhaar only for PDS, LPG distribution scheme, MGNREGA scheme, National Security Assistance Programme, PM Jan Dhan Yojana and Employees’ Provident Fund Scheme, the PMLA Rule mandates Aadhaar enrolment lest … [Read more...] about Aadhaar Hearing (Day 14): PMLA Rule 9 Violates Spirit Of Article 14 In Entirety, Argues Senior Counsel Arvind Datar

In the post-lunch session of Day 13 of the Aadhaar hearing, Senior Counsel Gopal Subramanium, appearing on behalf of the petitioners, criticised sections 28 and 29 of the Aadhaar Act, dealing with data security and confidentiality and restrictions on information sharing respectively, and the relevant Regulations. Regarding the said provisions as unsatisfactory safeguards, he advanced, “They only offer an assurance. Besides, the instant the authentication fails, it is assumed that there is duplication and that the biometrics were validly captured at the time of Enrolment”. In relation to Regulation 28 of the Aadhaar (Enrolment and Update) Regulations of 2016, stipulating the cases when the Aadhaar number may be deactivated and particularly the clause permitting deactivation ‘as deemed appropriate by the authority (UIDAI)’, he submitted, “There is no procedural or substantive reasonableness in the exercise of this discretion by the UIDAI”. In … [Read more...] about Aadhaar Hearing [Day-13]- Court Must Consider Granting Compensation To Aadhaar Victims Particularly In The Cases Of Starvation Deaths: Gopal Subramnium To SC

As the Aadhaar hearing resumed post the lunch hour on Wednesday, senior counsel Gopal Subramanium drew the attention of the bench to the portions of the Justice KS Puttaswamy judgment dealing with the concerns of ‘informational privacy’, which “reflects an interest in preventing information about the self from being disseminated and controlling the extent of access to information”. “The Aadhaar Act and the regulations framed thereunder envisage an all-pervasive regime of dataveillance, including metadata. There is no doubt about it,” he submitted. In response, Justice DY Chandrachud indicated the observation in the privacy judgment that the State has a legitimate interest in monitoring the web to secure the nation against cyber attacks and the activities of terrorists. He also referred to an article by Richard A Posner that the judgment takes into account, in so far as Posner has written that “privacy is the terrorist’s best friend, … [Read more...] about Aadhaar Hearing [Day 12,Session-2]: State Isn’t Justified In Surveilling Entire Citizenry As If They Were All Terrorists: Gopal Subramanium

On Day 9 of the Aadhaar hearing, Senior Counsel Kapil Sibal commenced his arguments submitting that many persons are facing problems in registration for old age homes on account of the need for Aadhaar. “How many parts of the country do not have electricity and wifi? How many places are there where machines have not reached and where they do not work? How can the Aadhaar scheme be implemented in a country like India?”, he inquired rhetorically. “1.2 billion Indians have already been enrolled under the project. Merely 10 crore remain. So the scheme must be functioning”, responded Justice A. K. Sikri. “This is not a ground to say that the Act of 2016 is unconstitutional”, added Justice Ashok Bhushan. “Identity is only proof. Entitlement should be based on status and not identity. Only today a news report has been published that ration shops in Delhi are also awaiting Authentication”, submitted Mr. Sibal.At this point, … [Read more...] about Aadhaar Hearing [Day-9] Article 21 Gives Me Choice And The Aadhaar Act Takes It Away: Kapil Sibal

On Day 9 of the Aadhaar hearing, Senior Counsel Kapil Sibal commenced his arguments submitting that many persons are facing problems in registration for old age homes on account of the need for Aadhaar. “How many parts of the country do not have electricity and wifi? How many places are there where machines have not reached and where they do not work? How can the Aadhaar scheme be implemented in a country like India?”, he inquired rhetorically. “1.2 billion Indians have already been enrolled under the project. Merely 10 crore remain. So the scheme must be functioning”, responded Justice A. K. Sikri. “This is not a ground to say that the Act of 2016 is unconstitutional”, added Justice Ashok Bhushan. “Identity is only proof. Entitlement should be based on status and not identity. Only today a news report has been published that ration shops in Delhi are also awaiting Authentication”, submitted Mr. Sibal.At this point, … [Read more...] about Aadhaar Hearing [Day-8] Article 21 Gives Me Choice And The Aadhaar Act Takes It Away: Kapil Sibal

As the Aadhaar hearing resumed on Wednesday, Senior Counsel Kapil Sibal, appearing on behalf of petitioner Raghav Tankha and another, submitted that Section 8(3)(c) of the Aadhaar Act of 2016, which speaks of ‘alternatives to submission of identity information to the requesting entity’, has been wrongly drafted as the definition of ‘authentication’ in section 2(c) of the Act leaves no room for any alternatives.While Justices A. K. Sikri and A. M. Khanwilkar disputed the aforesaid argument, Justice Ashok Bhushan advanced that the purpose of the alternatives is to aid in “double checking”.Agreeing, Mr. Sibal remarks, “This is related to my argument against ‘one nation, one identity’”.“So what is wrong with the concept of ‘one nation, one identity’? Are we not all Indians?”, asks Justice Bhushan.“The concept of identity is unconnected to being an Indian”, replied Mr. Sibal.Justice D. Y. … [Read more...] about Aadhaar Hearing [Day-8] Our Identity As Indians Cannot Be Confined To Mere Aadhaar Numbers: Kapil Sibal [Read Written Submissions]

From 17 January 2018, a five-judge bench of the Supreme Court of India started hearing final arguments in the much-awaited Aadhaar case. For reasons that have been extensively debated elsewhere (see for example here, here and here), the Aadhaar challenge will require the Court to answer questions of critical constitutional significance.This is the first among a series of posts where I will outline my thoughts on the arguments in the Aadhaar case. It is not my aim to predict or pre-judge the Court’s conclusions; neither is it to take sides. These posts are intended as a commentary on the arguments as they develop.Senior Counsel Shyam Divan opened the arguments for the Petitioners on Wednesday. Currently, the arguments are in their preliminary stages. All I intend to do in this post, therefore, is to outline four important themes: (a) the context; (b) the composition of the bench; (c) the nature of the Petitioners’ challenge; and (d) retrospectivity. (A) The ContextTo judge … [Read more...] about Aadhaar Hearing [Week-1] Preliminaries